Case Law Update - June 2011

ADJUDICATION

Failure to consider defence

PC Harrington Contractors Ltd v Tyroddy Construction Ltd [2011] BLM Vol. 28 No. 5 TCC

An adjudication decision in favour of Tyroddy was held not to be enforceable because the adjudicator had failed to consider a defence put forward by Harrington. Harrington's submission was that the adjudicator had construed his jurisdiction so narrowly that he did not have regard to their defence that the release of the retention could not be separated from the taking of the final account, so that they could raise the true value of the latter by way of set-off against the retention. The court held this to be a material breach of natural justice.

Waiver of jurisdiction and writing

Durham County Council v Jeremy Kendall [2011] BLM Vol. 28 No. 5 May 2011 TCC

The result of the case turned on the finding that there was a single binding contract evidenced in writing for the purposes of s.107 HGCR Act, rather than three separate agreements as the defendant argued. However, more important (since such cases are set to become of chiefly historical importance) is the obiter discussion of waiver of jurisdictional objections. The court focussed on the distinction between 'specific' and 'general' reservations and particularly GPS Marine v Ringway ( Samuel Townend and Justin Mort).

ARBITRATION AND DISPUTE RESOLUTION

Mealey's International Arbitration Report Vol. 26 No. 3 March 2011

contains the following articles:

Dallah: agreement or disagreement between the English and French courts? by Robert Wheal and Paul Brumpton, White & Case, London

New Arbitration Law in France: the Decree of January 13 2011 by Jean-Pierre Harb and Christophe Lobier, Baker & McKenzie, Paris

ICC International Court of Arbitration Bulletin 2010 Vol. 21 No. 2

contains the following articles:

Enforcement and setting aside of foreign arbitral awards in Japan by Hiroshi Oda, University College, London

Party autonomy and default rules: reframing the debate over summary disposition in international arbitration by Gary Born and Kenneth Beale, Wilmer Cutler Pickering Hale & Dorr

Incoterms in the arbitral awards of the International Chamber of Commerce by Emmanuel Jolivet, ICC

Arbitration Law Monthly Vol. 11 No. 5 May 2011

contains the following articles:

Jurisdiction: existence of an arbitration agreement (onStellar Shipping v Hudson Shipping Lines)

Arbitrability: unfair prejudice petitions (on Fulham Football Club v Richards)

Insolvency of a party: discretion to refuse a stay (on Cosco Bulk Carrier v Armada Shipping)

Security for the amount of the award (on A v B)

Stay of proceedings: validity of the arbitration agreement (on JSC BTA Bank v Ablyazov)

Error of law and serious irregularity (on Schwebel v Wolf Schwebel in the TCC)

See Dawes v Treasure and Son under Keating Chambers Reported Cases on whether an arbitrator becomes functus officio at the conclusion of a settlement agreement.

Lloyds Maritime and Commercial Law Quarterly Part 2 May 2011

contains the following articles:

Determining jurisdiction and choice of law in contractual disputes coupled with property related claims by Herman Boonk, Boonk Van Leuwen, Rotterdam

Forum selection, choice of law and mandatory rules by Martin Davies, Tulane University

The position in the United States on foreign forum selection and arbitration clauses by Robert Force, Tulane University

Conflicts between jurisdiction and procedure: pre-action civil procedure and jurisdiction – a poor fit by Philip Morgan, University of Southampton

Documentary fundamentalism in the Senior Courts: the myth of contractual estoppel by Gerard McMeel, University of Bristol

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW

International Construction Law Review Vol. 28 Part 2 2011

contains the following articles:

Apportionment in the evaluation of construction delays by Franco Mastrandrea

ICSID Arbitration as an option for international construction disputes by Bart Ceenaeme, Jan de Nul Group

Professional negligence by the Hon Sir Anthony Mason

Consequential loss

McCain Foods (GB) Ltd v Eco-Tec (Europe) Ltd [2011] CILL 2989 TCC

Upholding Hotel Services v Hilton International, the court confirmed that direct losses for the purposes of the first limb of Hadley v Baxendale can include loss of profit or loss of revenue. The respondent vendor had agreed to indemnify the claimant purchaser against losses, liabilities, damages and expenses arising out of any breach of an equipment...